Judge blocks effort to use no-match letters to fire illegal workers

U.S. temporarily prohibited from threatening bosses

Published 4:00 am, Wednesday, October 10, 2007

A federal judge in San Francisco on Wednesday blocked the Bush administration's attempt to enlist the nation's employers to banish illegal immigrants from the workplace.

Saying the administration's plan "would result in irreparable harm to innocent workers and employers," U.S. District Judge Charles Breyer barred authorities from threatening to prosecute businesses that fail to fire employees whose Social Security numbers don't match government records.

Breyer's preliminary injunction is likely to keep the proposal on hold until sometime next year.

Breyer said unions that challenged the administration's proposal had raised serious questions about its legality and had shown that legal workers, and their employers, would suffer far greater hardship from immediate enforcement of the plan than the government would incur by a delay.

The injunction is binding until the case goes to trial, a proceeding that is many months away. But the administration is virtually certain to ask the Ninth U.S. Circuit Court of Appeals in San Francisco to overrule Breyer and let the new system take effect while it is being challenged. The court might act on such a request by the end of this year.

The premise of the rule, he said in a statement, is that "employer diligence will make it more difficult for illegal aliens to use a Social Security number to get a job."

But Lucas Guttentag, chief immigration lawyer for the American Civil Liberties Union, which helped represent the unions in a lawsuit challenging the rule, said the plan's fatal flaw is its reliance on error-filled Social Security records that could lead to the firings of hundreds of thousands of citizens and legal residents.

The administration "showed a callous disregard for legal workers and citizens by adopting a rule that punishes innocent workers and employers under the guise of so-called immigration enforcement," Guttentag said.

Chertoff announced the new rule in August to toughen a 1986 immigration law's little-enforced provision banning businesses from knowingly employing illegal immigrants. The administration adopted the rule a year earlier but kept it on hold until after a comprehensive immigration bill died in Congress in June.

Under the new regulation, the government planned to send warning letters this fall to 140,000 employers with a total workforce of more than 8 million. Officials said those employers typically had at least 10 workers whose Social Security numbers on W-2 tax forms did not match the government's database.

The so-called no-match letters would give the employer 90 days to resolve the discrepancy and an additional three days for an employee to submit a new, valid number. After that, an employer who failed to fire the worker would be subject to civil fines or criminal prosecution.

The suit by the AFL-CIO and other unions, filed Aug. 29, drew support from major business groups. They said the new rule would force employers - who now rely on immigration documents presented by job applicants - to set up expensive new systems to verify workers' immigration status in an impossibly short time.

"It's an attempt to enlist employers as immigration cops," Randy Johnson, vice president of the U.S. Chamber of Commerce, said Wednesday. While such an effort is not necessarily improper, Johnson said, the administration's plan would do little to clear up employer confusion about no-match letters and would snare large numbers of legal employees along with the undocumented.

The unions made a similar argument, saying the government and employers commonly make mistakes in recording Social Security numbers and that name changes due to marriage and divorce and discrepancies in the spellings of foreign names lead to similar confusion.

Many legitimate workers would be unable to locate records within sprawling federal agencies and clear up discrepancies within 90 days, the unions said. They said the rule also would prompt employers to fire, or refuse to hire, legal workers with foreign names or appearances.

Breyer said the unions' prediction is plausible.

"There is a strong likelihood that employers may simply fire employees who are unable to resolve the discrepancy within 90 days, even if the employees are actually authorized to work," he said.

Breyer did not decide the merits of the lawsuit, which claimed the new rule was unauthorized by law. He rejected some of the unions' broadest challenges to the rule, including a claim that no-match letters are so error-prone that the government should not be allowed to use them as evidence of illegal employment.

He also rejected arguments by unions and employers that the 1986 law imposed no duty on businesses to verify employees' immigration status after they were hired.

But he found other potential legal problems, including the administration's failure to explain its reversal of a decade-old government policy of not prosecuting employers on the basis of a discrepancy in a worker's Social Security number.

"Needless to say, this change in position will have massive ramifications for how employers treat the receipt of no-match letters," Breyer said.

In addition, Breyer said, Homeland Security lacked legal authority for a statement in the letter that assured employers that the government would not sue them for discrimination if they fired workers because of unresolved no-match letters. There has been no such assurance from the Justice Department office that is responsible for such suits, Breyer said.

The judge also said he has "serious doubts" about the department's assertion that the new rule would not impose a significant burden on small businesses. Federal law requires the government to conduct a study of costs and alternatives when a new regulation causes such burdens.

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